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Federal Class Action
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I. INTRODUCTORY STATEMENT
II. JURISDICTION
III. CLASS ACTION
IV. DEMAND FOR JURY TRIAL
V. PARTIES
VI. CONSTITUTIONAL STANDARDS OF DUE PROCESS
VII. STATEMENT OF FACTS FOR NAMED PLAINTIFFS
VIII. GENERAL FACTUAL ALLEGATIONS
CATEGORY I, ABUSIVE PRACTICES
CATEGORY II, UNCONSTITUTIONAL STATE STATUTES
CATEGORY III, FUNDAMENTAL STRUCTURAL VIOLATIONS
CATEGORY IV, FEDERAL VIOLATIONS
IX. CAUSES OF ACTION
X. PRAYER FOR RELIEF
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JETAIME, ERICK, JESSICA, and CHRISTOPHER RODRIGUEZ, their parents,DAVID and TERESA RODRIGUEZ, and their grandparents, OSCAR P. and DALIA RODRIGUEZ; JOHN and SUSAN ALLISON and their children, JOHN ALLISON, JR., JASON, JACOB, JOSHUA, JARED and JASMINE ALLISON; SHAMALA BANASH, BRENT JAY GRIFFIS, and their children, CHINELL, JUSTINE, JENTRI, and BRANDON GRIFFIS; RICHARD FOSTER and his daughter, GINA FOSTER; JAMES LOUGH; on their own behalf and on of families, parents, children, and citizens of the State of Utah similarly situated,
Plaintiffs,
vs.
JAN GRAHAM, both individually and as the Attorney General of the State of Utah; STEVEN HARDING, former principal of Edison Elementary School; PERRI ANN BABALIS, LISA OPLIN, and other as yet unknown John Doe assistant attorneys general representing the Division of Child and Family Services; ROBIN ARNOLD-WILLIAMS, Executive Director of the Utah Department of Human Services; KEN PATTERSON, Director of the Utah Divison of Child and Family Services; LEE ROBINSON, KELLY KENDALL, STEPHANIE McNEIL, MERILEE BOWCUTT, and other as yet unknown John Doe caseworkers employed Services; STERLING M. SAINSBURY, CHARLES BEHRENS, and other as yet unknown John Doe Judges of the Utah Juvenile Courts; THE UTAH BOARD OF JUVENILE COURT JUDGES; KRISTIN BREWER, Utah Guardian ad Litem Director; KRISTIN FADEL, RON WILKINSON, and other as yet unknown John Doe Guardians ad Litem; RICHARD C. HOWE, Chief Justice of the Utah Supreme Court; I. DANIEL STEWART, CHRISTINE DURHAM, MICHAEL ZIMMERMAN, LEONARD H. RUSSON, Justices of the Utah Supreme Court; MICHAEL J. WILKINS, Presiding Judge of the Utah Court of Appeals; JAMES Z. DAVIS, RUSSELL W. BENCH, JUDITH M. BILLINGS, PAMELA T. GREENWOOD, NORMAN H. JACKSON, GREGORY K. ORME, Judges of the Utah Court of Appeals,
1. This civil rights class action is brought on behalf of all Utah families, parents, children, and citizens who are, have been, or will be victims of the practices of the Utah Department of Human Services (DHS), the Utah Division of Child and Family Services (DCFS), the Utah Juvenile Court System, and the Utah Appellate Court System to the extent it reviews (or declines to review) the activities of the Utah Juvenile Court System.
2. Defendants are obligated under the Utah Constitution and the United States Constitution to insure that no families, parents, children, or citizens residing in the State of Utah are deprived of their life, liberty or property without due process of law. The Supreme Court of the United States has repeatedly and clearly held that parents have a liberty interest in raising their own children, that the right to raise one's own children without undue government interference is a fundamental right, and that any attempt to interfere with this right is subject to strict judicial scrutiny.
3. It is self-evident that parents can love their own children as no one else can, and that, absent truly egregious circumstances, they are the best qualified to raise their own children. The right to raise one's own child is a fundamental right, and if this fundamental right is to be denied upon a showing of unfitness or incompetence, the burden must be upon the State to prove this, allowing the accused parent due process protection at least as great as that offered in a criminal trial. If the State alleges that too many innocent children are suffering thereby, the burden is upon the State to improve its preparation for trial, not upon society to sacrifice its constitutional protections.
4. Notwithstanding these self-evident truths, the Defendants have engaged in a systematic process by which the families, parents, children and citizens of the State of Utah have been terrorized, traumatized, and torn asunder, as well as deprived of their fundamental rights without due process of law.
5. The motivation behind this system of State oppression is federal funding. The State of Utah receives over one-fourth of its annual budget from the federal government. In the fiscal year ending in 1998, the State of Utah received nearly $1.4 Billion from the federal government, of which the lion's share, $907 Million, went to "Human Services". This is four and half times as much as was provided for education, and six times what was provided for transportation.
6. To receive federal money, the State must comply with federal laws establishing unprecedented control over every aspect of family life. The right to pass laws pertaining to child welfare was never delegated to Congress by the founding fathers. It is reserved to the States under the Tenth Amendment. Nevertheless, presuming to act under its spending powers, Congress buys from the States those powers it could never exercise directly.
7. Utah's child welfare laws, as written, and as applied by the defendants, have been enacted specifically for the purpose of qualifying for federal funding. In accordance with the federal statutes, funding is increased in proportion to the number of children who can be brought within the juvenile court, foster care, and compulsory adoption system. The laws explicitly call this "freeing children" from their parents for adoption.
8. The motivation to qualify for such enormous amounts of money, under the guise of "protecting the best interest of the child," directly contradicts the defendants' obligation to protect the integrity, privacy, and constitutional rights of the families, parents, children and citizens of the State of Utah. It is apparent from the actions of the defendants that the profit motive has prevailed.
9. The child welfare laws of the State of Utah, as written in accordance with federal legislation, and as zealously applied by the defendants, deny all but a thin facade of due process. Among the most blatant examples:
a. Once children are removed from a home, parental rights are automatically terminated in twelve months unless parents either expend all of their financial and emotional resources in a legal "battle to the death," or waive all their due process rights and their human dignity as well. The State is never required to actually prove that parents are unfit, and in practice rarely even has such proof to offer.
b. Under current federal and state law, parents are not permitted to know who has reported them to the State for alleged violations of child welfare laws. Once parents are so accused, they are presumed guilty, and the burden is placed upon them to prove their innocence.
c. The juvenile courts of Utah are closed to the public. Since they are a secret chamber, due process can be abused with impunity. The justification given for this secrecy is to "protect the best interests of the child." In practice, however, the only parties actually protected are the defendants. Indeed, secrecy is the hallmark of the child welfare system.
10. The named plaintiffs in this class action are families -- parents and children together -- as well as other citizens who have suffered and are suffering egregious abuse at the hands of Utah's child welfare system. In all of these cases, families have been severely traumatized if not destroyed, while parents and others have been threatened with termination of their parental rights, denied due process, and subjected to arbitrary, capricious, and malicious actions by DCFS personnel.
11. The Rodriguez family, the first named plaintiffs, came to Utah in August, 1990. Throughout the 1992-93 school year, Jetaime, who was then in second grade, was molested by the principal of her elementary school, Steven Harding. The Rodriguez's did not learn about this molestation until some time later, but upon seeing that their two oldest children were not progressing in public school, they began home schooling. In 1996, Mrs. Rodriguez learned that the molestation had occurred. When she reported the abuse to the proper authorities, however, DCFS promptly attempted to take away the four Rodriguez children, alleging that they were "educationally neglected." To date, no action whatsoever has been taken against Harding. The Rodriguez's were coerced into pleading guilty to charges of which they were innocent, but were allowed to keep their own children and to temporarily leave the State of Utah to find a new home. Although they moved into a new home in Arizona, close to their relatives, the Juvenile Court ordered the children returned to Utah. In March, 1998, police in Bullhead City, Arizona, surrounded the Rodriguez home, arrested the Rodriguez children, and placed them in foster care in Salt Lake County. Even though relatives in Arizona were more than willing to take the children into their care, Utah law prevented them from even being considered. While in foster care, the Rodriguez children have endured all kinds of neglect and abuse, none of which they ever suffered prior to being taken from their parents. The children have also been forced to receive psychotropic medications, contrary to every belief of their parents. Jetaime has been raped while in foster care, and Christopher, who is 8, has been beaten by DCFS caseworkers. At no time has the State ever alleged that the Rodriguez's have in any way abused, physically neglected, or endangered their children. Nevertheless, in March, 1999, apparently at the personal direction of Defendant Jan Graham, the State of Utah will attempt to terminate the Rodriguez's parental rights and put the Rodriguez children up for adoption. Ironically, the defendants allege that it is the Rodriguez's who were seeking federal funding.
12. The Allison family, the second named plaintiffs, came under DCFS surveillance when they sought help to remove an abusive relative from their home. The relative was removed, but the DCFS caseworker then launched a reign of terror and entrapment, threatening for four months to take the children away and place them for adoption if the Allison's did not clean their home. On Friday the 13th of December, 1996, he carried out this threat, justifying his actions on the basis of conditions that he himself had helped to create. Providentially, the children were soon returned. However, notwithstanding ample evidence of the caseworker's misconduct, the juvenile court lauded his behavior and authorized him to carry out further inspections. The caseworker then began working in concert with the abusive relative, who was communicating death threats to the Allison's. Seeing that the court would give them no relief, the Allison's returned to their native Oregon. The Utah juvenile court then issued warrants for the arrest of the Allison children in Oregon. Although states rarely question one another's child custody orders, the Oregon courts found the case so questionable that the State of Oregon assumed temporary custody. When the Utah court realized that the matter had been publicized in Oregon, it promptly surrendered jurisdiction. Oregon subsequently dismissed the matter, finding not only that the children were not neglected, they were in fact exceptionally bright and well-behaved.
13. The Griffis-Banash family, the third family named as plaintiffs, reside in Duchesne County, Utah. Shamala Banash and Brent Griffis admittedly had a substance abuse problem, and voluntarily placed their children with relatives while they got their lives in order. This was done as a family matter, without any State involvement. Ms. Banash's aunt, however, asked DCFS to intervene, which it gladly did. Notwithstanding her voluntary effort, Ms. Banash was now ordered to change her life within 12 months or lose her children. Ms. Banash did so, but her and Mr. Griffis' parental rights are to be terminated in March, 1999, anyway. At no time have Ms. Banash or Mr. Griffis actually been alleged to be unfit parents. Since the Griffis' children are all placed with Ms. Banash's relatives, Ms. Banash is forbidden to attend extended family functions because she might have contact with her own children in violation of the court's order.
14. Plaintiffs Richard and Gina Foster are father and daughter. When Mr. Foster's brother made sexual advances on Gina, Mr. Foster did everything reasonably within his power to protect her. The brother is being criminally charged in the district court, and nobody has alleged that Mr. Foster has in any way abused, neglected, or endangered Gina. Nevertheless, Mr. Foster is only allowed to have supervised visitation with his daughter, and will automatically have his parental rights terminated in 12 months unless he complies with court orders entirely unrelated to the circumstances of the case. Although several relatives out of state are ready, willing, able, and imminently qualified to have Gina stay in their home, the State refuses to let her leave Utah.
15. Plaintiff James Lough stands accused of child abuse with no means to establish his innocence. Though never charged as a criminal, a finding of child abuse has allegedly been "substantiated" against him, and entered on the various databases restricting future employment opportunities. The matter was filed with the juvenile court and a trial date set, but Mr. Lough was never notified that a complaint had been filed, never notified of the trial date, and never provided with any evidence in order to prepare for trial. When Mr. Lough requested this information, he was informed that he had no standing to request it, because he was not named as a party in the action.
16. The Utah child welfare system operates in blatant violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States, and the named defendants and their agents have acted in concert in depriving the families, parents, children and citizens of Utah of their rights under color of law.
17. Plaintiffs, on behalf of themselves and on behalf of the class, seek declaratory and injunctive relief to enforce their rights under the United States Constitution.
II
JURISDICTION
18. This is an action pursuant to 42 U.S.C. §§1983 and 1985(3) and for injunctive and declaratory relief pursuant to 28 U.S.C. §§2201 and 2202, to redress the deprivation under color of state law of rights, privileges, and immunities guaranteed by the United States Constitution. Jurisdiction is thus conferred by 28 U.S.C. §1343(a). Jurisdiction is also conferred by 28 U.S.C. §1331, as this is an action arising under the Constitution and laws of the United States.
III
CLASS ACTION
19. Plaintiffs bring this action as a class action pursuant to Federal Rules of Civil Procedure 23(a), (b)(1), and (b)(2). The Rodriguez Family plaintiffs bring this related action against Defendant Steven Harding in accordance with Fed. R. Civ. P. 23(c)(4).
20. The Plaintiff class includes all parents and other persons against whom a claim of child abuse or neglect has or will be alleged by, or through the instrumentality of, the defendants, all parents who have or will have their parental rights terminated pursuant to State law, and all families who have been or will be brought within the jurisdiction of the Utah juvenile court system or against whom a claim may be brought in a Utah district court pursuant to Utah's child welfare laws. This includes but is not limited to all children who are now, or who will be in the custody of DHS in a shelter care facility, foster family home, group home, or institutional care, as well as all children who are or will be reported to defendants as the alleged victims of abuse or neglect. It also includes the natural-born parents of all such children.
21. The class is so numerous that joinder of all members is impracticable. As more and more activities are classified as offenses and as DHS, DCFS, the attorney general and the guardians ad litem assume broader and broader discretionary powers, no family in Utah is protected from abuse under the child welfare system.
22. There are questions of law and fact common to the class, all of which bear upon whether the defendants' actions and inactions violate: (a) the plaintiffs' liberty interest in the legal and emotional integrity of their families; (b) the right to privacy; and most importantly, (c) the rights conferred upon the plaintiffs by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. These questions predominate over any question affecting individual members of the class. The defendants have acted on grounds generally applicable to the class, and prosecution of separate actions would create a risk of inconsistent or varying adjudications.
23. The claims of the named plaintiffs are entirely typical of the claims of the class.
24. Plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs are represented by Michael L. Humiston. Counsel has extensive training and experience in matters related to Utah's child welfare laws, the Utah court system, and constitutional rights. Counsel for the Plaintiffs knows of no conflicts among members of the class.
IV
DEMAND FOR JURY TRIAL
25. Pursuant to Fed. R. Civ. P. 38(b), and in accordance with the Seventh Amendment to the United States Constitution, the plaintiffs hereby demand a trial by jury in the above-entitled matter.
V
PARTIES
Plaintiffs
26. Plaintiffs Erick, Jetaime, Jessica, and Christopher Rodriguez are siblings who were forcibly removed from their home in Bullhead City, Arizona, on March 7, 1998, and have been in various foster homes in Salt Lake County ever since. Erick is now 16, Jetaime is 14, Jessica is 10, and Christopher is 8, almost 9. The Rodriguez children appear in this action by their parents and next friends, David and Teresa Rodriguez.
27. Plaintiffs David and Teresa Rodriguez are the natural birth parents of Erick, Jetaime, Jessica, and Christopher. They are Cuban citizens, refugees from Communism, and legal residents of the United States. They currently reside near their relatives in Bullhead City, Arizona.
28. Plaintiffs Oscar P. and Dalia Rodriguez are the parents of Teresa Rodriguez and the grandparents of Erick, Jetaime, Jessica, and Christopher Rodriguez. Like David and Teresa Rodriguez, they are refugees from Communism. They reside in Bullhead City, Arizona.
29. Plaintiffs John and Susan Allison are the natural birth parents of John Jr., Jason, Jacob, Joshua, Jared, and Jasmine Allison. As a result of the injuries committed by the Defendants, the Allison's now reside in Sweet Home, Oregon.
30. Plaintiff John Allison, Jr., is the oldest son of John and Susan Allison. He is 18 years old and appears in this action in his own right.
31. Plaintiffs Jason, Jacob, Joshua, Jared, and Jasmine Allison are the children of John and Susan Allison. The boys range in age from 4 to 14. Jasmine is 2. The Allison children appear in this action by their parents and next friends, John and Susan Allison.
32. Plaintiffs Shamala Banash and Brent J. Griffis are the natural parents of Chinell, Justine, Jentri, and Brandon Griffis. Ms. Banash resides in Myton, Utah. Mr. Griffis is currently incarcerated in the Duchesne County Jail.
33. Plaintiffs Chinell, Justine, Jentri, and Brandon Griffis are the children of Shamala Banash and Brent J. Griffis. They are currently residing with various relatives of Shamala Banash and Brent J. Griffis in and around Duchesne County, Utah. Chinell is 6, Justine and Jentri, twins, are 3, and Brandon is 4, almost 5. The Griffis children appear in this action by their parents and next friends, Shamala Banash and Brent J. Griffis.
34. Plaintiff Richard Foster is the natural father of Plaintiff Gina Foster. Mr. Foster and Gina's mother are divorced, and Gina has little if any contact with her mother. Mr. Foster now resides in Grand Junction, Colorado, with his current wife and her three children.
35. Plaintiff Gina Foster is the daughter of Richard Foster. Gina is 13, almost 14, years of age. She is currently residing in a foster (not Foster) home somewhere in Duchesne County.
36. Plaintiff James Lough is a resident of Roosevelt, Utah.
Defendants
37. Defendant Jan Graham is sued both individually, and in her official capacity as the Attorney General of the State of Utah. As Attorney General, she has not only personally seen that the child welfare laws of Utah are zealously enforced, she has actively campaigned for the passage of such laws and adamantly defends those laws, notwithstanding their profound constitutional defects. She has demanded that her assistant attorneys general likewise zealously enforce the child welfare laws, particularly those pertaining to termination of parental rights. She has also promoted efforts to expand the powers of the guardians ad litem to collect information on families, parents, children, and other citizens in contravention of those persons' rights to privacy and due process. She is sued in her individual capacity to the extent that she has acted contrary to her official duty to uphold and defend the Constitution of the United States.
38. Defendant Steven Harding is the former principal of Edison Elementary School in Salt Lake City. In that position of trust and as an employee of the State of Utah he committed acts of sexual abuse against Jetaime Rodriguez. He is brought into this action in accordance with Fed. R. Civ. P. 23(c)(4).
39. Defendants Perry Ann Babalis and Lisa Olpin are assistant attorneys general of the State of Utah. In this capacity they are representative of the many as yet unnamed assistant attorneys general who have actively engaged in enforcing Utah's child welfare laws.
40. Defendant Robin Arnold-Williams is the Executive Director of the Utah Department of Human Services. As Director of the Department of Human Services, she has responsibility for the administration and supervision of Utah's social services programs, including the child welfare system.
41. Defendant Ken Patterson is the Director of the Utah Division of Child and Family Services. As Director of the Division of Child and Family Services, he has responsibility for the actual implementation of Utah's child welfare system by the division's numerous caseworkers. (He also has actual, rather than constructive, knowledge of the facts and circumstances surrounding the Rodriguez family.)
42. Defendants Lee Robinson, Kelly Kendall, Stephanie McNeil, and Merilee Bowcutt are caseworkers with the Division of Child and Family Servies. As such, they are representative of the many as yet unnamed DCFS caseworkers who daily exercise authority over the families, parents, children and other citizens falling within their control.
43. Defendants Sterling M. Sainsbury and Charles Behrens are judges of the Utah Juvenile Court system. As such they are representative of the many as yet unnamed juvenile court judges who routinely permit, encourage, and sanction the abuses committed within the Utah child welfare system.
44. Defendant Utah Board of Juvenile Court Judges is a body of juvenile court judges created under §78-3a-201, Utah Code (1953, as amended) for the purpose of administering federal funds received by the Utah Juvenile Court system.
45. Defendant Kristin Brewer is the Utah Office of Guardian ad Litem Director, as set forth under §78-3a-911, Utah Code (1953, as amended). She is appointed by and answerable to the Judicial Council of the State of Utah, and is responsible for the administration and supervision of the guardian ad litem program throughout the State of Utah.
46. Defendants Kristin Fadel and Ron Wilkinson are Guardians ad Litem employed by the State of Utah. As such they are representative of the many as yet unnamed guardians ad litem who have been specifically trained to represent children against their own parents, in accordance with federal training guidelines.
47. Defendants Richard C. Howe, I. Daniel Stewart, Christine Durham, Michael Zimmerman, and Leonard H. Russon are the justices of the Utah Supreme Court. As the Supreme Court of Utah, they have a duty to uphold and defend the Constitution of the United States and the Constitution of Utah, and to protect the rights of the people of Utah under those Constitutions.
48. Defendants Michael J. Wilkins, James Z. Davis, Russell W. Bench, Judith M. Billings, Pamela T. Greenwood, Norman H. Jackson, and Gregory K. Orme are the judges of the Utah Court of Appeals. As the Utah Court of Appeals, they have exclusive jurisdiction over all appeals arising out of the Utah juvenile court system. They also have a duty to uphold and defend the Constitution of the United States and the Constitution of Utah, and to protect the rights of the people of Utah under those Constitutions.
VI
CONSTITUTIONAL STANDARDS OF DUE PROCESS
49. The Fifth Amendment to the United States Constitution states: "No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."
50. The Fourteenth Amendment to the United States Constitution, Section 1, states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
51. The Fifth Amendment obligates the federal government to provide due process to the citizens of the United States, and the Fourteenth Amendment, both by its own terms and by incorporating the rights set forth in the Bill of Rights, makes that obligation binding upon the states, including the State of Utah.
52. The elements of due process are well established in criminal law, inasmuch as the rights of the people are most at risk in criminal proceedings. Many of these elements are derived directly from the Bill of Rights. These include:
a. The right to be free from unreasonable searches and seizures (Fourth Amendment);
b. The right against self-incrimination (Better known as the right to remain silent, or "pleading the Fifth") (Fifth Amendment);
c. The right not to be tried twice for the same crime (Double Jeopardy) (Fifth Amendment);
d. The right to notice of the accusations against oneself (Sixth Amendment;
e. The right to a PUBLIC trial (Sixth Amendment);
f. The right to confront the witnesses against oneself (Sixth Amendment);
g. The right to be assisted by counsel (Sixth Amendment);
h. The right to an impartial jury, both criminal (Sixth Amendment) and civil (Seventh Amendment); and
i. The right against cruel and unusual punishment (Eighth Amendment).
53. The relationship between the state and accused persons is clearly and admittedly adversarial. The ethical obligations of attorneys recognize that adversarial nature. Prosecuting attorneys are obligated to respect the rights of the accused, and defending attorneys are obligated to protect those rights. It is well established that agents of the state, be they attorneys, police, investigators, or any other potential witnesses are not to communicate with an accused party once that person has invoked his or her right to remain silent, and particularly after that person has retained counsel.
54. The grounds for remaining silent are clearly set forth in the famous "Miranda Warning:" "If you choose not to remain silent, anything you say CAN and WILL be used against you in a court of law."
55. The law also recognizes that some relationships are the opposite of adversarial, instead constituting relationships of trust. These relationships depend for their very existence and efficacy on the assurance that information so communicated will NEVER be used against either of the parties to the communication. Foremost among these privileges is that between attorney and client. Similar recognition is given to the relationship of priest-penitent, husband-wife (in Utah), doctor-patient, and therapist-patient.
56. Privileged interpersonal communications are an essential aspect of the privilege against self-incrimination. Without the existence of these privileges, marriage, medicine, counseling, and indeed, the legal profession itself would be crippled virtually out of existence. No meaningful communication could be given out of fear that something, anything, one says might be used against him or her in a court of law. One cannot s